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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, Chester, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, August 18, 2015

Police beating case goes to trial.

Excessive force claims are all around us. They are also in the news. Some of the claims have merit. We let the juries sort it out unless there is no way the plaintiff can win, and the trial court grants summary judgment. In this case, the trial court threw out the case. The Court of Appeals brings it back.

The case is Rogoz v. City of Hartford, decided on August 10. Plaintiff brought $50 worth of heroin and drove off when an unmarked police car approached and an unidentified man got out and walked toward him. Plaintiff drove away at a high rate of speed, not realizing the police were after him. When the police got to him, he complied and was made to lay on the ground with his hands behind his back. While he did not resist, the police fractured of of his ribs and his spine in two places.

Sounds like a great case, right? It may not be a great case, actually. The evidence set forth above is plaintiff's side of the story. The police have a different account, claiming plaintiff knew he was fleeing the police. Their lawyers moved for summary judgment, claiming the evidence compels only one conclusion and that plaintiff cannot win. The district court granted the motion. The Court of Appeals reverses and sends the case back for trial.

Along the way, the Court of Appeals (Kearse, Parker and Wesley) provides a thorough discussion of what summary judgment means. The Court does not break new ground, but it does compile from other cases all the language that makes it clear that trial courts (a) cannot weigh the evidence; (b) resolve credibility disputes or (c) view the evidence from the defendant's point of view. The Court also reminds us that excessive force claim are often fact-specific and do not lend themselves to summary judgment.

The Court also notes that defendants conceded many facts that would help plaintiff win the case:

the police officer defendants expressed in their brief on appeal "no material disagreements" (Watson brief on appeal at 5) with Rogoz's assertions that, before Watson broke his back and rib, Rogoz had "complied with each of the officers' commands" and had "not resist[ed] in any way" (Rogoz brief on appeal at 6). Based on these facts a jury could easily infer that Rogoz--out of his car, prone on the ground, and compliant when Watson jumped on his back--did not "pose[] an immediate threat to the safety of the officers or others" and was not "actively resisting arrest or attempting to evade arrest by flight."

The Court concludes:

Given the undisputed facts that on the highway, Rogoz had pulled over when he noticed the police vehicles, had complied with officers' orders to exit his car, and had complied with their orders to lie face down on the ground with his hands behind his back, and had done so without any show of resistance, a jury could find that, by that time, there was no urgency that necessitated jumping on Rogoz's back. And if the jury were to find that Watson in fact proceeded to jump on Rogoz's back with such force that he broke Rogoz's rib and/or his spine, it could well find that Watson had used more force than was necessary. Of course, the jury is not compelled to find either that Watson jumped on Rogoz's back--an assertion by Rogoz that is conceded by the police officer defendants only "for the purpose of" defending "Summary Judgment" (Watson brief on appeal at 5-6)--or that the amount of force used by Watson in fact broke Rogoz's spine and rib, an issue that remains in dispute. But if Watson jumped on the back of the prone, compliant Rogoz, breaking his spine and rib, it is surely at least arguable that the force used was excessive.